Articles Posted inInternet Defamation

The Internet is full of morons. If an Internet troll who clearly has no idea what he or she is talking about posts false statements on social media about another person, the effect on the reader is different than if the same statement had been written by an authoritative figure and circulated to the public in a formal news release. Readers would tend to believe the assertions made in the authority figure’s formal statement, and tend to dismiss the troll’s statement as nothing more than meaningless Internet noise. In actions for libel and slander, the perceived knowledgeability and credibility of the speaker plays an important role in the determination of whether defamatory meaning has been conveyed by a particular statement.

The Alex Jones lawsuit comes to mind. Alex Jones is the host of InfoWars and an extremely popular online conspiracy theorist. He has claimed that the 2012 shooting at Sandy Hook Elementary School was an elaborate hoax, complete with adult and child actors, invented by government-backed “gun grabbers.” Many of his followers apparently believed his claims and have been harassing the victims’ families. Recently, several of the families have filed defamation lawsuits against Jones, arguing that he “persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.”

Harassment and bullying can take place in many different forms. Sometimes the conduct is actionable in a court of law, and sometimes it isn’t. Sometimes it involves defamation of character, whereas other times the harassment takes the form of electronic stalking. Before scheduling an appointment to speak with a lawyer, you should know the difference. In a nutshell: if the bad actor’s harassing activity consists primarily of spreading false rumors about a person on social media, then we’re most likely dealing with the law of defamation. Conversely, if the harassment consists of persistent threats of sexual assault or physical bodily harm, you’re dealing with the law of criminal stalking. Defamation occurs when a person publishes an “actionable statement” with the requisite intent. Stalking occurs when a person “on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person’s family or household member.” (See Va. Code § 18.2-60.3). I write about defamation law all the time, so the rest of this post will focus on what stalking is and how it is different.

A defendant commits the crime of stalking when the following elements are met:

The defendant directed his or her conduct toward the victim on at least two occasions;

The defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and

“SLAPP” suits are lawsuits brought primarily for the purpose of stifling criticism or intimidating those with opposing views by forcing them to incur legal-defense costs. (SLAPP stands for “Strategic Lawsuit Against Public Participation”). The lawsuits are often disguised as defamation actions but generally have as their true purpose a desire to silence speech deemed undesirable (regardless of whether the speech is truthful). Many states have passed anti-SLAPP laws designed to turn the tables by requiring plaintiffs who bring such suits to reimburse the defendant for legal fees incurred in fighting off the action. Virginia enacted its anti-SLAPP statute only recently–the latest amendments, which allow the recovery of attorneys’ fees for the first time, became effective July 1, 2017. Consequently, not a lot is known about how the courts will interpret and apply its terms. Its language differs markedly from the anti-SLAPP laws in other states, so the Virginia courts are going to have to blaze new territory in deciding how to apply the new law.

One big question the courts are going to have to decide: does Virginia’s new anti-SLAPP law apply to consumer reviews? In the past, defamation actions tended to be brought primarily against newspapers. But now we have the Internet, where anyone can be a publisher of content, and courts are becoming increasingly clogged with defamations brought against consumers by businesses offended by negative reviews posted to Yelp, Angie’s List, or some other consumer-review site. Concerned about studies such as the one by Harvard Business School concluding that a difference of just a single star on Yelp can affect business revenues by nearly 10%, many businesses respond very aggressively to consumers who post negative reviews that bring down their average rating, sometimes resorting to litigation. Such businesses need to be reminded, however, that the First Amendment protects consumers’ right to express their personal views, no matter how negative or harmful they may be. So is this a situation where the new anti-SLAPP law might be applied?

Suppose you live in Virginia and have been defamed on Facebook or Twitter by someone who lives in another state on the other side of the country. Can you file a lawsuit in Virginia, or do you have to sue in the state of the defendant’s residence? Many have tried to sue distant tortfeasors in Virginia on the theory that social-media posts can be read all over the world (including Virginia) and that the defendant knew his defamatory statements would cause harm to a person located in Virginia, but these lawsuits rarely succeed. It has become clear that to sue a person in Virginia in cases of Internet defamation, courts want to see a purposeful targeting of Virginia readers. Merely issuing a statement published to the entire world is not enough.

The relevant legal concept is that of “specific personal jurisdiction.” The court needs to have power to issue a judgment over another person, and to do so consistent with the United State Constitution, specific (or general) personal jurisdiction must be found to exist. In essence, the question is whether the defendant maintains sufficient “minimum contacts” with Virginia so a lawsuit filed against that person in Virginia would not offend “traditional notions of fair play and substantial justice.” The general idea is that it would not be fair to hale someone to court on the other side of the country if that person had no meaningful connections with that other state. Posting something on Facebook does not connect a person in any meaningful way with every state in the country.

Yes, the First Amendment protects your right, as a consumer, to express your personal opinions about any business you ordered products or services from, no matter how unfavorable those opinions may be. The First Amendment also protects your right to express those opinions anonymously, so if you’d rather not tell the whole world that you had a bad experience with the customer-service representative at Ashley Madison, the law allows you to post an unfavorable review of the company without revealing your real name. Still, despite the abundance and convenience of online review sites like Yelp, TripAdvisor, Google+, and Angie’s List, many consumers are reluctant to share negative experiences on these sites. Why? They worry about being sued for defamation. They read about aggressive businesses who bury non-disparagement clauses in form contracts and who file multi-million-dollar libel and slander claims in far-flung jurisdictions, based solely on a negative Yelp review. So they keep their opinions to themselves, depriving the consuming public of the benefit of their experiences. (This is known, incidentally, as a “chilling effect”).

Unfortunately, if you rip into a shady business with a scathing (and well-deserved) online review, there is always a possibility that the business will sue you for defamation. These claims are often frivolous and filed only as an intimidation tactic, but they are a pain to deal with nonetheless. Still, when a business deserves a one-star review, and has dealt with you in such a way that you feel an obligation to warn other consumers about the business, you can still write that scathing review with little risk of retaliation. Here are five considerations to keep in mind as you write that review:

Online review sites wield enormous power, and some enterprising consumers have begun leveraging that power to extract refunds or other benefits from businesses worried about protecting their online reputations. Suppose you’re at an orthodontist’s office being fitted for some $5000 braces when the orthodontist accidentally pierces the inside of your cheek. You decide that (a) the doctor is incompetent and (b) the world should be made aware of that fact for the good of mankind. Your first instinct is to go to Yelp or HealthGrades and write a scathing review warning the public about the dangers of dealing with this orthodontist. But then you realize you might be able to gain even greater satisfaction another way: you contact the doctor, tell him of your plans to write a negative online review, and offer to refrain from posting the review if he will waive the $5000 charge for the braces. You get free braces, and the doctor gets to preserve his 5-star Yelp rating. Win-win, right?

Consumers have a First Amendment right to express their opinions regarding products and services they have received, but things get a little tricky when people threaten to exercise that right as a means to extract money from someone. Some would call this blackmail, known in Virginia as extortion. Extortion is governed by Va. Code § 18.2-59, which provides in pertinent part, “Any person who (i) threatens injury to the character…of another person,…and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony.”Continue reading

Libel and slander are considered “torts.” The law of torts is designed to provide a remedy that will “make the plaintiff whole” to the fullest extent possible. Usually, we’re talking about money: how much money would it take to fully compensate the plaintiff for the harm caused caused to the person’s reputation by the defamation? What is the value of the reputation and what amount would fairly compensate the plaintiff for his or her emotional anguish? Often, however, plaintiffs are less interested in money than in halting or removing the damaging statements (especially if they were published online and continue to reach readers), or forcing the defendant to make a public retraction. This latter form of relief–asking the court to order someone to refrain from making certain statements or to perform an affirmative act–is considered “equitable” in nature, basically meaning that it will be guided by vague principles of fairness. A court order granting this relief is called an injunction. It’s almost impossible to get.

One might think that if the purpose of tort law is to provide plaintiffs with a complete remedy for the harm, an injunction would be a logical choice because it has the capacity to prevent harm from happening in the first place. Moreover, many affected by online defamation take the position that no amount of money can truly restore a damaged reputation or bring an end to the emotional distress caused thereby. But that’s not how the legal system works. Virginia law (like the law in most states) has a strong preference for money damages over injunctive relief. If the court finds that an award of money will fully compensate the plaintiff, it will not issue an injunction as a general rule. This means that unfortunately, there is often a huge disconnect between what victims of online defamation want and what the court is willing to give them.Continue reading

The Internet is full of factual assertions that were true at the time they were first published, but no longer are. Can future events modify the factual and legal landscape in such a way as to create defamation liability where there initially was none?

Earlier I wrote about the case of Lorraine Martin v. Hearst Corporation. Lorraine Martin brought a defamation action against several news outlets which had published accounts of her arrest for drug-related charges. It’s not that she wasn’t arrested; her complaint was that the charges were dropped in 2012 and that the publications refused to remove the original articles, which were still available online and causing harm to her reputation. The statements had become false over time, she argued, because Connecticut has an “erasure statute” which provides that after a certain amount of time after the dismissal of a criminal charge, the charge is deemed “erased” and the person’s arrest record is wiped clean. The District of Connecticut rejected this argument, finding nothing in the statute to suggest that the legislature had intended to impose any requirements on anyone outside of courts or law enforcement. On January 28, 2015, the Second Circuit affirmed the dismissal of her claims.

On August 26, 2010, the Connecticut Post, Stamford Advocate, and Greenwich Time, all published articles online stating that Martin had been arrested and charged with numerous drug violations after police received information that a pair of brothers was selling marijuana in town. News 12 Interactive, LLC, published an Internet article reporting that Martin was arrested “after police say they confiscated 12 grams of marijuana, scales and traces of cocaine from [her] house.” Martin conceded that these statements were all true at the time they were originally published. (Note: even before reading the court’s analysis, it should be apparent to most of you that when a plaintiff admits her defamation action is based on a true statement, there are going to be problems.)

Under the current statute, suits in Virginia for libel, slander, or “insulting words” can only be brought within one year from the time of publication. Earlier this month, delegate Dave Albo filed House Bill No. 1635, proposing that the Commonwealth increase the limitations period to two years, and providing further that in cases involving Internet defamation by anonymous tortfeasors, the statute of limitations be suspended (or “tolled”) upon a motion and showing of good cause. If the bill passes, it will make it a lot easier to identify and bring to justice those persons who use the Internet to conceal their identities while unleashing a barrage of false and harmful statements about another individual or business.

Statutes of limitation have been debated for hundreds of years. In a law review article written over 100 years ago, Oliver Wendell Holmes, Jr. asked, “what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time?” In other words, why have statutes of limitation at all? Shouldn’t every wrong have a remedy? There are some who feel that claims should be resolved on their merits regardless of when they are brought, whereas others argue that untimely claims should be forever extinguished. Most states have reached a consensus that defamation claims should be limited to one or two years, primarily due to concerns about First Amendment principles and a desire to avoid the chilling of free speech.Continue reading

Once upon a time, each separate copy of a defamatory statement was considered a separate publication, giving rise to a separate cause of action for defamation. Back then, if a defamatory article was published in a newspaper and the newspaper printed a million copies, the plaintiff could argue successfully that he had been defamed a million times. That is no longer the law, at least not in Virginia. Take Yelp reviews. If a new cause of action was created each time a consumer clicked a link leading to a defamatory review, the one-year statute of limitations would potentially never expire. Such a rule would likely allow plaintiffs to endlessly harass defendants by filing a new lawsuit with each new click. For reasons like these, Virginia follows the “single publication rule,” which treats an online post as a single publication despite the fact that it may be read over and over again by different people all over the world. The number of views may be relevant to assessing the plaintiff’s damages, but does not re-start the running of the statute of limitations or create new causes of action.

A Virginia law firm learned this lesson recently in Westlake Legal Group v. Yelp and Christopher Schumacher. Mr. Schumacher hired Westlake attorney Thomas K. Plofchan, Jr., back in 2009 and, according to his Yelp review, was not pleased with the representation he received. His review, posted on July 7, 2009, accused Westlake of “blatant incompetence and lying” and of having “a history of messing up cases.” Westlake sued for defamation, not only against Mr. Schumacher, but against Yelp itself. The firm did not file the lawsuit, however, until May 11, 2012, well after the one-year limitations period had expired.Continue reading

The results of all client matters depend on a variety of factors unique to each matter. Past successes do not predict or guarantee future successes.

The Virginia Defamation Law Blog is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting all relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. The opinions expressed here are not intended to, nor do they create, any attorney-client relationship.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.